When can my child decide who (s)he will live with?
This question is one of the most frequently asked questions in my office, and the California Family Code answers it: “If a child is of sufficient age and capacity to reason so as to form an intelligent preference as to custody or visitation, the court shall consider, and give due weight to, the wishes of the child in making an order granting or modifying custody or visitation.” FC§3042
A child’s participation must be considered on a case-by-case basis. The Courts have found children ten (10) and thirteen (13) years old to be “very mature” and considered their input; while denying the request of a fourteen (14) year old, whose request was not supported by mature reasoning. The Court wants parents to articulate the facts that justify the best custody and visitation schedule for the children. Likewise, the Court expects children to articulate, with sound reasoning, why their input should be considered.
The Courts repeatedly instruct parents to keep “court issues” quiet and from sharing them with the children. So parents, counselors, mediators, and attorneys each must balance the voice and desire of the child, with the instruction of the Court to keep the child “walled-off.” Exposing children to “adult issues,” such as child custody and visitation proceedings, is seldom in the best interest of the child. Communicating with a child about the proceedings, without speaking to the child about the issues is difficult. I encourage clients to talk less and listen more; if there are legitimate issues that your child wants to bring to your attention, you have to be ready to listen first. Too often, parents attempt to convince their children of the benefits of remaining with them and talk in excess; keeping quiet and listening, may provide more beneficial and supply you with the information you need.
A child will have greater consideration in the modification process, rather than an initial determination of custody and visitation, because they will have experienced the prior arrangement. If the child is fourteen (14) years or older and desires to address the Court, the Court must receive the testimony unless it determines that it is not in the child’s best interest. A counselor, mediator, investigator, or attorney may notify the Court of the child’s decision. Conversely, nothing in the Code requires a child to address the Court. If the Court opts against calling the child as a witness, they must provide an alternate means to hear from the child. Think twice, however, before exposing your young ones; not everyone wants to be a witness in a family law case.
If you have questions about custody or child visitation orders, the Law Office of Heath L. Baker will help you. Please contact us at (951) 222-2228, or at our website: www.heathbakerlaw.com. We would love to talk to you in person and discuss the family law or divorce issues that are important to you.